Michigan Civil Rights Amendment, Proposal 2 (2006)
|I • II • III • IV • V • VI • VII • VIII • IX • X • XI • XII • Schedule|
- 1 Aftermath
- 2 Election results
- 3 Text
- 4 Poll Results
- 5 Petition drive controversies
- 6 First Federal Lawsuit Against MCRI
- 7 "Preferential Treatment"
- 8 Post Election
- 9 Notable endorsers
- 10 Opposition
- 11 Campaign funding
- 12 Similar ballot measures
- 13 See also
- 14 External links
- 15 References
The amendment sought to ban affirmative action programs in education and in public sector job hiring.
The subject of the proposal has been hotly debated, with the very definition of what it encompasses at the center of the controversy. Proponents argue that it bans programs in public hiring, public employment, and public education that "give preferential treatment to" or "discriminate against" individuals on the basis of race, gender, ethnicity, or national origin. Opponents argue that Proposal 2 bans all affirmative action programs in the operation of public employment, education, or contracting.
Proponents cite the 1964 Civil Rights Act and the "Equal Protection" clause of the Fourteenth Amendment to the United States Constitution that forbids the United States or any state from denying "equal protection of the law" to any citizen as models for the proposal.
According to Michigan law, the proposal became law on December 22, 2006, but was legally challenged.
One legal challenge - a request for a short-term delay by three Michigan universities and an advocacy group (BAMN, see below) - was denied review by the United States Supreme Court on January 19, 2007. The request was an appeal from a December 29, 2006 Court of Appeals ruling overturning a December 19, 2006 district court agreement that would have allowed a six-month delay in enforcement only as it related to university admissions. The universities requested this delay because they had substantially completed the admissions determinations for the upcoming enrollment period, which would result in potential unfair treatment for students applying after the initiative was passed.
On November 24, 2009 the 6th U.S. Circuit Court of Appeals in Cincinnati heard arguments regarding to the constitutionality of the 2006 approved measure. Opponents argued that the law "has created an unfair process where universities give weight to geographical diversity and legacy status but not racial identity." In 2008, a district court judge dismissed a challenge to the law.
The lawsuit against the University of Michigan, trustees from Michigan State University, the Board of Governors of Wayne State University, U-M President Mary Sue Coleman, MSU President Lou Anna K. Simon and WSU President Irvin Reid was filed by the Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight For Equality By Any Means Necessary (BAMN).
The federal court ruled that the voter-approved amendment was unconstitutional. Judge R. Guy Cole wrote, "We find that Proposal 2 unconstitutionally alters Michigan’s political structure by impermissibly burdening racial minorities."
On June 24, 2013, the United States Supreme Court ruled in a 7-1 decision in the case of Fisher Vs. University of Texas that universities have to show compelling evidence to justify the use of affirmative action in their enrollment decision processes. While this case does not directly affect Proposal 2, some legal experts believe it could show a willingness of the court to allow such voter initiatives. Kevin Saunders, a law professor at Michigan State University, said, "This ruling may indicate a reluctance by the majority of the court to allow the overturning of Prop 2 to stand."
Attorney General Schuette appealed the 6th Court of Appeals' decision to the Supreme Court, which agreed to hear the case. On October 15, 2013, the U.S. Supreme Court heard, "Schuette v. Coalition to Defend Affirmative Action," about whether or not a state can constitutionally prohibit race-based affirmative action in public university admissions decisions. Justice Kagan recused herself from the case.
|Michigan Proposal 2 (2006)|
|Overturned Case:Coalition to Defend Affirmative Action v. Regents of the University of Mich. Nos. 08-1387/1389/1534; 09-1111|
Official results via: The Michigan Secretary of the State
The ballot initiative amended the Michigan Constitution to include a new section (Section 26 of Article I):
(1) The University of Michigan, Michigan State University, Wayne State University, and any other public college or university, community college, or school district shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.
(2) The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.
The last reported poll of October 15, by the Detroit News, showed MCRI to have up to a 50-41 lead. In another Free Press-Local 4 (WDIV) Michigan poll conducted by Selzer & Co. Inc. of Des Moines between October 8 to October 11 of 643 likely voters, it was shown that 41% were in favor of the Michigan Civil Rights Initiative, while 44% opposed the measure, and 15% of the voter poll were undecided. The poll had a margin of error of 3.9% making the poll a statistical dead-heat. Another poll, from mid-September 2006, showed MCRI was up 48-37 with 15% undecided, with the pollster admitting that his previous polls had not used the exact language of the proposal until the Sept. poll. The entire polling process highlighted an ongoing debate about the scientific value of modern phone polling on questions of race or controversial social issues where the polled members of the public may be "embarrased" to give a truthful response about their intended vote for fear that they will be identified. The effect, which was predicted by several Michigan political consultants and even some pollsters themselves, represents a new concern in polling accuracy.
Petition drive controversies
MCRI proponents submitted 508,282 signatures to the Michigan Secretary of State on January 6, 2005. During the early debate about the proposal shortly following the time that the signatures were filed, the Michigan Civil Rights Commission, a governmental body charged with investigating civil rights violations in the state of Michigan, concluded an investigation of MCRI in which they asserted that supporters of the MCRI had committed widespread and systematic racially-targeted fraud in their petition campaign to secure ballot access.  
The proponents of the initiative issued a multi-page refutation of the report, including a notation that it was never signed by the Commission and alleging misconduct by the Commission itself .
In July 2005, the Michigan State Board of Canvassers declined to certify the MCRI proposal for Michigan's November 2006 ballot after hearing allegations that some signatures were obtained when signature gatherers improperly claimed to potential signers that the petition was for a measure that promoted affirmative action. However, in October of the same year, the Michigan Court of Appeals ordered the board to certify the petitions.
On December 14, 2005, in Lansing, Michigan, the board's four members were attempting to vote on whether they would certify the petitions for the November ballot at a meeting attended by hundreds of Detroit high school students. The crowd began to shout "No voter fraud" until they got so loud that the members left the room adjourning until 2pm. Chanting, "They say Jim Crow! We say hell no!" the emotion-surged crowd of students continued in their civil disobedience until a table was overturned amidst the commotion and the Lansing police came in to control the situation. Video of the situation can be seen here.
After the protest, the election panel again failed to certify the petitions with a vote of 2-1, falling short of the required three votes. Republican board members Katherine Degrow and Lyn Banks voted in favor with Democrats Paul Mitchell voting no and Doyle O'Connor not voting.
The meeting received considerable media attention because of the protest. In the months following the controversial board meeting, both Mitchell and O'Connor resigned from the board and were fined $250 on contempt of court charges. O'Connor later testified against the MCRI at the August 17 federal court hearing, relaying how he had witnessed two African-American women circulating the anti-affirmative action petition in Detroit telling signers that it was in support of affirmative action. Proponents counter this claim by arguing that O'Connor, as a member of the Board of Canvassers, had failed to offer this testimony during Board meetings and waited until after the Board had decided and a lawsuit begun to relay his alleged testimony. Proponents suggest that O'Connor had a clear conflict of interest as a first-hand witness, and that he unethically failed to relay that information to the rest of the board and to MCRI officials and recuse himself from the decision-making process, and that his testimony as a result is simply not credible given that he waited so long to relay it.
In September 2006, after opponents filed a federal lawsuit against the MCRI alleging fraud in the collection of petition signatures, a federal judge in Detroit denied an injunction to have the initiative barred from the ballot even after he declared that the voter fraud did in fact take place .
First Federal Lawsuit Against MCRI
Oral arguments in a federal lawsuit charging MCRI and the State of Michigan with violating the Voting Rights Act of 1965 were heard on August 17, 2006 with attorneys presenting their closing arguments on the morning of August 18. The case was heard by U.S. District Court Judge Arthur Tarnow, who promised to rule on the matter by September 8, 2006, to give officials enough time to print up the ballot. During the first day of the hearing, hundreds of protesters picketed outside the courthouse chanting among other things, "Racist fraud, hell no! MCRI has got to go!" The lawsuit was filed by Operation King's Dream, Detroit Mayor Kwame Kilpatrick, Detroit City Council, American-Arab Anti Discrimination Committee, Michigan Legislative Black Caucus, Keep the Vote No Takover, AFSCME Locals 207, 312, and 2920, and UAW 2200 as well as several individual voters. Michigan Governor Jennifer Granholm submitted an amicus brief in support of the plaintiffs.
On August 29, 2006, the case was decided with Judge Tarnow, a Democratic judicial appointee, refusing to remove the initiative from the ballot. However, Judge Tarnow declared that "MCRI engaged in systematic voter fraud by telling voters that were signing a petition supporting affirmative action." However, because the case was not decided on these grounds, this statement is legally characterized as "dicta"--judicial commentary that is not relevant to the outcome of a case. Tarnow also found Jennifer Gratz's (MCRI's executive director) testimony in the court to be evasive and misleading. His stated reason for refusing an injunction to remove the MCRI from the ballot was the MCRI "targeted all Michigan voters for deception without regard to race." He ruled that the Voting Rights Act was not violated because it "is not a general anti-voter fraud statute, but rather prohibits practices which result in unequal access to the political process because of race."
Luke Massie, national co-chair of the Coalition to Defend Affirmative Action, Integration, and Immigrant Rights & Fight for Equality By Any Means Necessary (BAMN) announced that the plaintiffs would appeal Tarnow's decision to the United States Court of Appeals for the Sixth Circuit, saying "It makes no sense to conclude there was fraud and allow the vote to go forward." The 6th Circuit rejected the appeal in mid-September .
Proponents of the MCRI claim that the initiative will make illegal only those programs and policies, affecting university admissions, public employment, and contracting, that grant "preferential treatment" based on gender, race, or ethnicity. These claims were disputed by some opponents who cite California's Proposition 209, alleging that the language of that proposal outlawed "all affirmative action policies" and programs, and MCRI's language is nearly identical. Proponents counter this argument by arguing that while MCRI is nearly identical to California's amendment, neither MCRI or 209 outlawed "all" or any "affirmative action." They point to programs such as California's use of socio-economic indicators, outreach targeted at the 150 lowest scoring high schools, and traditional anti-discrimination enforcement as some among many race-neutral types of "affirmative action."On March 7, 2007, however, the Michigan Civil Rights Commission, which had previously fought against Proposal 2, issued a report at the behest of the Governor, taking the position that Proposal 2 did not eliminate "all" affirmative action. In their summary of a 63 page report, Linda Parker, chair of the Commission, now agreed with Proposal 2 advocates, "With this Report, the Commission and Department confirm that Proposal 2 does not mean the end of equal opportunity or diversity in Michigan," Commission Press Release. The Report explicitly cites the difference between "preferential treatment" and "affirmative action."Proponent of Proposal 2, Chetly Zarko, argued that this "flip-flop"  by the Commission not only proved MCRI was correct all along about the legal issues and difference, but that it disproved the Commission's report alleging "fraud" in signature-collection since the Commission had previously alleged in its June 2006 fraud-allegation report that petitioners should have used the words "affirmative action" in their presentation , with audio Mp3 of meeting.
Although the people of the state of Michigan had banned all public affirmative action programs by a significant majority, many groups have challenged the rule of the binding constitutional legislation.
On November 8, 2006, BAMN called a press conference announcing that they had launched a second lawsuit against Proposal 2 in conjunction with United for Equality and Affirmative Action and Rainbow/PUSH Coalition, claiming that it violates both the Equal Protection clause of the Fourteenth Amendment and the First Amendment as affirmed by the Supreme Court decision, Grutter v. Bollinger .
That same day, about 2,000 students gathered on the diag at the University of Michigan where University President Mary Sue Coleman gave a speech in which she promised U-M would go to court to defend its efforts to promote diversity, even though the people of Michigan had voted against affirmative action. Two weeks later, on November 21, Grand Rapids Mayor George Heartwell said he was considering having the city file a federal lawsuit to overturn Proposal 2.
On December 19, U.S. District Court Judge David Lawson ruled that the state's three largest public universities--the University of Michigan, Michigan State University, and Wayne State University--could delay implementation of Proposal until July 1, 2007. The universities had filed a lawsuit seeking the delay, charging fairness in admissions, in response to BAMN's lawsuit in which all three universities were named as defendants. The Center for Individual Rights has asked the U.S. Sixth Circuit Court of Appeals to overturn Judge Lawson's ruling and force the universities to adhere to the ban on affirmative action immediately.
On December 29, a 3-judge panel of the 6th US Circuit Court of Appeals lifted Judge Lawson's injunction granting the 3 universities the July 1 implementation delay and ordered them to implement Proposal 2 immediately. 
The city of Lansing has also filed a lawsuit to delay implementation of Prop 2 until July 2007. In Detroit, Matt Allen, a spokesman for Mayor Kwame Kilpatrick said the city illegally "will continue doing business as it has been" in spite of the state-wide ban on affirmative action.
Another lawsuit has been filed in federal court by the NAACP and the ACLU to block the ban on affirmative action .
On January 4, 2007, the Center for Individual Rights filed a lawsuit in Washtenaw Circuit Court, asking a judge to order the University of Michigan to immediately comply with Proposal 2, and abandon their affirmative action programs. The case was resolved on January 29 when Eric Russell, whom the Center for Individual Righs was representing voluntaryily withdrew the lawsuit.
Jan. 9-10: BAMN holds a press conference at Cass Tech High School in Detroit announcing that their appeal of the Federal Appeals Court decision overturning the delay of the ban on affirmative action. The next day, after placing holds on admissions, the University of Michigan announces that they will comply with the ban on affirmative action. Hours later, Supreme Court Justice John Paul Stevens responds to BAMN's appeal of the 6th U.S. Circuit Court of Appeals decision overturing the delay of Proposal 2's implementation and orders all briefs due by January 17. U-M, Wayne State, MSU, and Michigan Governor Jennifer Granholm all file briefs in support. Michigan Attorney General Mike Cox urged Stevens to deny the injunction. On January 19, the Supreme Court denied BAMN's appeal without comment.
On Thursday, February 15, BAMN submitted 2,000 petitions to the Board of Regents of the University of Michigan demanding that there be no drop in minority enrollment. The following Tuesday, on February 20, the Michigan Student Assembly, the elected student government of U-M passed a resolution demanding that there be no drop in underrepresented minority student enrollment.
Notable endorsers of the MCRI include:
- Michigan Association of Scholars.
- National Association of Scholars.
- Ward Connerly: California businessman who led similar campaign in California with Proposition 209.
- Jennifer Gratz: executive director of the MCRI, plaintiff in the Supreme Court case Gratz v. Bollinger.
- Barbara Grutter: plaintiff in Grutter v. Bollinger, co-chair of Towards a Fair Michigan.
- William B. Allen: Michigan State University political science professor, co-chair of Towards a Fair Michigan.
- Dr. Carl Cohen: University of Michigan philosophy professor.
- Chetly Zarko: former Treasurer/Director of Media, MCRI, political consultant.
- Doug Tietz: MCRI campaign manager, former U-M YAF Chair.
- Greg Creswell: Libertarian Candidate for Governor of Michigan.
- Reverend Jerry Zandstra: Republican primary candidate for US Senate, Michigan.
- Howard Schwartz: Professor, Oakland University.
- Arthur White: Professor, Western Michigan University.
Notable opponents of the MCRI include:
- One United Michigan
- National Association for the Advancement of Colored People
- Michigan Governor Jennifer Granholm
- Former Michigan gubernatorial candidate Dick DeVos
- Detroit Mayor Kwame Kilpatrick
- By Any Means Necessary (BAMN)
- Grand Rapids Mayor George Heartwell
- Rainbow/PUSH Coalition
- Association of Michigan Universities
- Michigan Civil Rights Commission
- Jesse Jackson
- Al Sharpton
- Detroit City Council
- American-Arab Anti Discrimination Committee
- American Civil Liberties Union
- Detroit Federation of Teachers
- Arab American Institute
Below is information on the amount of funds raised for and against Proposal 2:
Contributions for Proposal 2:
|Michigan Civil Rights Initiative Committee||$1,391,711|
|American Civil Rights Coalition||$455,820|
|Race Free Zone||$12,194|
Contributions against Proposal 2:
|One United Michigan||$4,540,216|
|Operation Kings Dream||$230,656|
|American Civil Liberties Union Affirm Action||$127,467|
|Vote No on Prop 2||$4,055|
Similar ballot measures
The MCRI is a near copy of similar initiatives in California (California Proposition 209 (1996)) and Washington (Washington Affirmative Action Ban, Initiative 200 (1998)) which were proposed and defended by the American Civil Rights Institute, a national organization founded by Ward Connerly.
Going into 2008, the objective of Ward Connerly, the main organizer of these bans on governmentally-sponsored affirmative action, was to have a Super Tuesday for Equal Rights, with similar ballot initiatives on the ballot in five states. As a result of that effort, the Nebraska Initiative 424 passed with 58% of the vote, and the Colorado Civil Rights Initiative was narrowly defeated, with 49% of the vote. The Arizona Civil Rights Initiative, Missouri Civil Rights Initiative and Oklahoma Civil Rights Initiative did not make the ballot.
- A related measure that did not make the ballot is Michigan End Alumni and VIP Preferences Initiative (2006)
- MCRI proponents
- One United Michigan (opposed to MCRI)
- Equality Talk
- TAFM (Towards a Fair Michigan)
- Zarko Research & Consulting (blog of former Director of Media Relations for MCRI)
- John Rosenberg's Discriminations
- Why Voters Should Approve the Michigan Civil Rights Initiative
- 2006 Official Election Results via the Michigan Secretary of the State
- Michigan House Fiscal Agency, Analysis of Proposals on the Ballot November 7, 2006
- Associated Press,"Court to consider Mich. affirmative action ban," November 17, 2009
- AnnArbor.com,"University of Michigan has no plans to alter admissions process after federal court ruling," July 1, 2011
- The Detroit News,"State to fight ruling against ban on race in college admissions," July 1, 2011
- TPM,"Michigan AG Appeals 'Nutty' Ruling Against State's Affirmative Action Ban," July 29, 2011
- MichiganRadio.org,"Court agrees to reconsider affirmative action ruling," September 9, 2011
- The Chronicle,"Full Sixth Circuit to Take Up Michigan’s Ban on Affirmative-Action Preferences," September 10, 2011
- The Washington Post, "US appeals court strikes down Michigan’s 2006 ban on affirmative action in college admissions," November 15, 2012
- Detroit Free Press, "Despite Court Ruling, Future of Michigan's Affirmative-Action Ban Still Unknown," June 25, 2013
- Washington Post, "Michigan is back with affirmative action fight," October 13, 2013
- SCOTUS Blog, "Schuette v. Coalition to Defend Affirmative Action," accessed December 30, 2013
- National Institute on Money in State Politics,"PROPOSAL 06-2: Ban On Affirmative Action Programs," accessed August 27, 2009
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